1. Even when a mistrial is declared without the consent of the defendant or upon his motion,
a retrial is still constitutionally permissible if the judge exercised sound discretion in
determining justice required a mistrial. The test to be applied in assessing the judge's
discretion in declaring a mistrial and discharging the jury from giving a verdict is whether
there is a manifest necessity for the act or the ends of public justice would otherwise be
defeated.

2. The existence of manifest necessity depends upon a balancing of the interests between the
defendant's right not to be placed in double jeopardy versus the public interest in seeking a
final determination through a second trial.

3. The prosecution has the burden to prove that manifest necessity justifies a mistrial which is
declared without the defendant's consent.

4. The trial judge must maintain control over court proceedings.

5. Under the circumstances of this case, the district court abused its discretion in granting the
prosecutor's motion for mistrial, where the prosecutor's prolonged belligerent refusal to
continue with the trial induced the district court to abdicate its authority and capitulate to
the State's demands.

MALONE, J.: Christobal Gonzalez was convicted of two counts of aggravated
criminal sodomy and one count of rape. He raises numerous issues on appeal
including whether the trial court violated the prohibition against double jeopardy when it
allowed the State to retry him after a mistrial.

The facts will be reviewed in considerable detail. On October 29, 1993, an
information was filed in Wyandotte District Court originally charging Christobal
Gonzalez with two counts of sodomy and one count of rape. The information alleged
that these crimes occurred between January 1, 1989, and January 1, 1990. The victim,
Y.A., was either 4 or 5 years old at the time. The defendant's mother was the victim's
babysitter. Y.A. did not accuse Gonzalez until June 1993. Gonzalez was either 14 or
15 years old when the alleged incidents took place, but he was 19 years old at the time
the charges were filed. An order authorizing adult prosecution was secured by the
State prior to filing the information.

Defense counsel filed numerous pretrial motions including motions for discovery
and expert services. There were numerous trial continuances and at one point the
defense counsel filed a motion to dismiss due to lack of a speedy trial. This motion
was overruled.

The first trial commenced on March 13, 1995. The victim's mother was the first
witness. On cross-examination, defense counsel challenged the mother's ability to
recall dates. As the defense counsel pressed, the number of objections and sidebars
steadily increased. Tension mounted until the following exchange took place between
defense counsel and the witness:

"Q Now, did you talk to Mr. Stuart [prosecutor] after I made my opening statement
yesterday?

"A Did I talk to him?

"Q In preparation for your testimony?

"A I don't know when we talked. I mean, he came out and got me if that's what you're
asking. I had
to talk to him.

"Q I'm not trying to insinuate anything bad about Mr. Stuart. It's perfectly legitimate for you
to talk to
Mr. Stuart any time you want. But what I'm trying to understand is why for the first time after my
opening statement you decided that you had seen Don't Touch My Daughter one or
two weeks
prior to June 9th. When did that occur to you it might have been two weeks?

"A I just--I'm--I don't want to say it's a certain date because it's been so long and I don't
remember.

"Q Well, you had no problem giving the--giving Alford [a detective] a certain date, told him
June 6th.

"A I was just guessing then. I mean, I--I--I'm really telling you.

"Q Understand me now, we're now down to the decision time. Don't guess. Okay. If you
don't
know, that's fine, that's your answer but you don't just guess, all right?

MR. STUART: Objection, Your Honor, I ask him to stop badgering the witness.

MR. DUNN: I will stop. This guessing is perplexing.

THE WITNESS: Isn't that the same as assuming? You want me to assume.

"Q (By Mr. Dunn) Ma'am, when I want you to assume I'll tell you. When I want you to
answer a
straight question, I assume that you'll answer the straight question. I assume that you won't
guess in criminal prosecution involving three B felonies.

MR. STUART: Objection, counsel. Now he's saying he wants her to guess
sometimes.
Now he doesn't want her to guess.

THE COURT: Assumption is not a guess.

MR. STUART: It's exactly the same.

MR. DUNN: How long have you been practicing?

MR. STUART: Do you have a problem with me? Judge, can we go back to
chambers?

THE COURT: Gentlemen, we can keep it till lunch on personal matters. Let's
continue
the trial."

Cross-examination continued for about 30 minutes. At recess, the prosecutor
moved for a mistrial. He told the court that he had seen a number of jurors laugh when
the defense counsel made the remark, "How long have you been practicing?" He
argued the remark had cost him all credibility with the jury. The court refused to grant a
mistrial at first, but then decided to consider the matter over lunch.

After lunch, the court entertained extensive argument and again denied the
request for a mistrial. At this point, the prosecutor refused to continue the trial:

"MR. STUART: Judge, I'm sorry, I don't mean to be disrespectful but I cannot continue
this trial
having seen those jurors react the way they did. I have no shot at a fair trial at all. My credibility
is
absolutely gone. I don't mean to be disrespectful but I cannot continue."

After the court said it would be in the best interests to go ahead, the prosecutor
continued to vehemently argue with the court:

"MR. STUART: I'm sorry, judge, I can't. I will not. And if you need to put me in jail or
find me in
contempt, you have to do that I'm sure but I will not continue with my credibility having been
attacked
like that. The victim has no shot at a fair trial now. It's a fair trial when you attack the evidence.
I'm not
the evidence. I brought down not only the judicial canons but also the ethical rules of
responsibility. I
can find three or four that appear to be violated."

After the prosecutor talked about what he deemed as ethics violations, the court
noted that the issue was whether the jury had been so contaminated as to not be able
to render a fair trial. The court also noted that jeopardy had attached. The court then
told the prosecutor if he did not continue it would be considered a voluntary dismissal.
The prosecutor said it would not be a voluntary dismissal.

The court then offered to allow the prosecutor to get another attorney to either
second chair or take over. The prosecutor refused:

"MR. STUART: Judge, I don't mean any disrespect but you have been consistently
siding with
the defense on this on all of the issues and particularly now that I personally have been attacked
you
won't grant me a mistrial when it causes absolutely no burden to the defendant other than we
reached
our mistrial. It's a lawyer paid for by the state. He's already waived his speedy trial. There's no
burden
on anything except for the fact that I have got to get my witnesses in and retry this case. The
only--that's
the only downside to us starting over. The downside to us continuing to go, judge, is that I
cannot win
now. Absolutely positively cannot win."

After some additional discussion, the court expressed a feeling that it had a
responsibility to provide a setting in which an attorney feels comfortable practicing law.
The trial judge finally stated, "I guess I'll declare the mistrial." Defense counsel
objected and clearly stated he was not agreeing to a mistrial.

Prior to the second trial, the defense counsel filed a motion to dismiss on double
jeopardy grounds. At the hearing, the defense counsel argued that the prosecutor's
refusal to proceed was not manifest necessity and did not require a second trial. The
defense counsel noted that the prosecutor did not request any less drastic means such
as questioning the jury for bias or admonishing and instructing the jury to disregard
counsel's comments. The State argued that there was manifest necessity to grant the
mistrial and that double jeopardy was not implicated.

The trial judge denied the motion, finding among other things that "I can't
personally force an attorney to go to trial." The trial judge concluded, "I think attorneys
can expect that they will be treated ethically in trial and if they feel like they've lost all
credibility with the jury, I can't argue with the fact that a mistrial is appropriate. I think at
that point it should be the attorney's call."

The defendant's second trial commenced before a different trial judge on
January 12, 1996. The jury found the defendant guilty of two counts of aggravated
criminal sodomy and one count of rape. The defendant was sentenced to three
concurrent terms of not less than 8 or more than 20 years' imprisonment. This appeal
follows.

The first issue we must decide is whether the defendant's second trial violated
his constitutional protection against double jeopardy. The Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution provides: "[N]or shall any
person be subject for the same offense to be twice put in jeopardy of life or limb." Such
double jeopardy protection is applicable to the states through the Fourteenth
Amendment to the United States Constitution. Similar protection against double
jeopardy is also provided in the Kansas Constitution Bill of Rights, § 10.

Protection against double jeopardy is also embodied in Kansas statutory law.
K.S.A. 21-3108 provides in part:

"(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime,
based
upon the same facts, if such former prosecution:

. . . .

(c) Was terminated without the consent of the defendant after the defendant had been
placed in
jeopardy, except where such termination shall have occurred by reason of: . . . (iii) the
impossibility of
the jury arriving at a verdict. A defendant is in jeopardy when he or she is put on trial in a court
of
competent jurisdiction upon an indictment, information or complaint sufficient in form and
substance to
sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn,
or
when the case is tried to the court without a jury, when the court has begun to hear evidence."

K.S.A. 22-3423 sets forth the grounds for granting a mistrial. The statute
provides in part:

"(1) The trial court may terminate the trial and order a mistrial at any time that he finds
termination is necessary because:

. . . .

(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with
the trial
without injustice to either the defendant or the prosecution."

"Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not
automatically barred when a criminal proceeding is terminated without finally resolving the merits
of the
charges against the accused. Because of the variety of circumstances that may make it necessary
to
discharge a jury before a trial is concluded, and because those circumstances do not invariably
create
unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is
sometimes subordinate to the public interest in affording the prosecutor one full and fair
opportunity to
present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact
that it is
frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is
to
avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate
'manifest
necessity' for any mistrial declared over the objection of the defendant."

"Even when a mistrial is declared without the consent of the defendant or upon his motion, a
retrial is still
constitutionally permissible if the judge exercised sound discretion in determining
justice required a
mistrial. [Citation omitted.] The test to be applied in assessing the judge's discretion in declaring
a
mistrial and discharging the jury from giving a verdict is whether there is a manifest
necessity for the act,
or the ends of public justice would otherwise be defeated. [Citation omitted.]"

The court reasoned in Bates that the existence of manifest necessity depends
upon a balancing of the interests between the defendant's "right not to be placed in
double jeopardy versus the public interest in seeking a final determination through a
second trial." 226 Kan. at 284. Furthermore, the court noted that the prosecution has
the burden to prove that manifest necessity justifies a mistrial which is declared without
the defendant's consent. 226 Kan. at 286.

In State v. Burnett, 13 Kan. App. 2d 60, 63, 762 P.2d 192, rev.
denied 244 Kan.
739 (1988), this court noted that where a mistrial is ordered because of improper
remarks made by defense counsel, the trial judge's determination is entitled to special
respect. The court stated that the trial judge may find that manifest necessity to declare
a mistrial exists where improper comments of defense counsel may bias the jury. The
judge must weigh the defendant's right to have a trial concluded before the first jury
with the public's interest in a fair trial and judgment. 13 Kan. App. 2d at 64.

The key issue for our determination is whether the trial court properly exercised
its discretion in granting the mistrial. Although no statutory basis for the mistrial was
given at the time it was granted, both parties cite K.S.A. 22-3423(1)(c) as the basis for
the mistrial. This statute provides that a trial judge may order a mistrial at any time
termination is necessary because of prejudicial conduct which makes it impossible to
proceed without injustice to either of the parties.

Here, the only basis for granting the mistrial was the defense counsel's offending
question "How long have you been practicing?" which was made to the prosecutor in
front of the jury. Although we agree that this statement was improper, it is not the type
of behavior which would normally necessitate a mistrial. Furthermore, the defense
counsel's remark pales in comparison to the belligerent conduct exhibited by the
prosecutor. The trial judge was clearly reluctant to grant a mistrial and indicated on at
least three separate occasions that the motion for mistrial was denied. Rather than
accept this ruling, the prosecutor persisted and indicated that he simply refused to
continue the trial.

After considerable discussion, the trial court relented and granted the mistrial
over the defendant's strenuous objection. The trial court expressed a feeling that it had
a responsibility to provide a setting in which an attorney feels comfortable practicing
law. At the subsequent motion to dismiss, the trial court stated that it could not
personally force an attorney to go to trial. The trial judge concluded that whether to
grant a mistrial under the circumstances of this case was "the attorney's call."

It is the trial judge's responsibility to maintain control over court proceedings.
Obviously the trial judge in this case had the authority to force the prosecutor to
continue the trial. Instead, the trial court ultimately abdicated this authority to the
prosecuting attorney. It appears that the trial judge initially balanced the defendant's
right not to be placed in double jeopardy against the public interest in seeking a second
trial. However, the trial court abandoned this test when it capitulated to the demands of
the prosecutor.

A mistrial was unnecessary to afford the State a fair trial under the
circumstances of this case. The trial judge could have employed less drastic options
which would have been more appropriate. We do not know if any jurors became
biased as a result of the improper statement because no inquiry was ever made. More
than likely, an instruction to the jury to disregard counsel's comments would have been
sufficient in this instance to assure that both parties continued to receive a fair trial.
Forcing the prosecutor to proceed under such circumstances clearly would not have
defeated the ends of public justice.

We recognize that the incident in this case was precipitated by an improper
remark of the defense attorney. However, the real problem was how the trial court
allowed the situation to escalate at the demands of the prosecutor. The State has a
heavy burden to demonstrate manifest necessity for any mistrial declared over the
defendant's objection. We are convinced from the record that the State failed to meet
this burden and that the ruling granting a mistrial amounted to an abuse of the trial
court's discretion.

Since we do not believe that the trial court exercised sound discretion in
determining that justice required a mistrial, we are unable to find the existence of
manifest necessity to allow a second trial of the defendant. In this case the prosecution
was entitled to one full and fair opportunity to bring Gonzalez to trial. This opportunity
was provided at the first trial. The defendant had an interest in having the original jury
decide his fate. Accordingly, we conclude that the second trial violated the defendant's
protection against double jeopardy guaranteed by the federal and state constitutions
and also Kansas statutes. Therefore, the trial court erred in overruling the defendant's
motion to dismiss based upon double jeopardy.

We recognize that the defendant has raised significant issues on appeal
concerning errors allegedly committed by the court in the second trial. However, the
double jeopardy issue is dispositive and therefore we do not need to address any other
issues raised in this appeal.